1 ssp

fa1210

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1210 OF 2010 The State of Maharashtra The Secretary to the Government of Maharashtra vs. Smt.U.P.Adke & Anr. ...Respondents

...Appellants

Mr.A.R.Patil, A.G.P for the appellants Ms Jyoti Pande for the respondent nos.1 to 4 Respondent nos.5 and 6 dead. None appears for the respondent no.7 CORAM : A.S.OKA,J. DATE ON WHICH JUDGMENT IS RESERVED:SEPTEMBER 15,2011 DATE ON WHICH JUDGMENT IS PRONOUNCED:OCTOBER 19,2011 JUDGMENT: 1 The appellant-State of Maharashtra and the

Secretary of Public Works Department of Government of Maharashtra have preferred the present appeal for challenging the Judgment and decree dated 6th may 2010 passed by the Civil Judge (Senior Division) at Nashik by which the appellants have been directed to pay compensation of Rs.2,00,000/- to respondent nos. 1 to 6 who are the original plaintiffs. The

appellants have been directed to pay interest at the rate of 9% per annum from the date of suit till realization. The compensation has been ordered and decreed to be paid as the State Government failed to maintain a public road in a proper condition which resulted in the accidental death of the husband of

fa1210

the first respondent. Cantonment accident. Board have

The State Government and the blamed each other for the

The record of the suit was called for and the

appellants were permitted to file paper book. The parties were put to notice that the Appeal will be taken up for final disposal. The appeal arises out of a very unfortunate incident which took place on 10th November 1995. One Mr.Pundalik (deceased husband of the respondent No.1) was plying his scooter on a road known as Lam Road, Nasik. He was proceeding towards his house from Nasik Road at about 10.30 p.m. When the said Pundalik reached near the

Dastagir Dhaba Square on the Lam Road, there was a ditch dug across the road. the purpose of providing The ditch was dug for the water pipe line

connection from the main pipeline which was on the right hand side of the road which proceeds from

Nashik Road towards Deolali

camp.

The said ditch It is alleged

was of considerable depth and width.

that there was no indicator put on for warning the drivers Though of the vehicles that there was a ditch.

the deceased

was driving

the vehicle very He

cautiously, he fell down in the said ditch.

sustained injuries to the head and other parts of the body. Unfortunately, he succumbed to the

injuries after he was admitted to a hospital. The death was due to shock caused by the head injury. The first respondent is the widow of the deceased. The second of to fourth respondents and are the and minor sixth The

children

the

deceased

fifth

respondents are the parents of the deceased.

fa1210

appellants

were

impleaded

as

first

and

second

defendants in the suit and the seventh respondent Cantonment defendant. Board has been impleaded as the third

The allegation in the plaint is that the road

was vested in the appellants and therefore, it was the statutory duty and obligation of the appellants to maintain the road in proper and good condition. It is contended that there was neglect, default and wrongful omission on their part. the 7th Respondent-Cantonment Board. It was contended

that the water pipeline was owned and maintained by At the spot of

accident, the main water line was on the right hand side of the road and the digging was made across

the road for giving supply to the premises on the left hand side of the road through the main line on the right hand side. It was contended that even the Cantonment Board is guilty of negligence as it

failed to maintain the portion of the road in proper condition.

It is alleged that the age of the deceased was

42 years and his income was about Rs.1,00,000/- per annum. A claim for damages in the sum of Rs.

10,00,000/- was made by the plaintiffs after giving a statutory notice to the appellants as well as to the seventh respondent.

Written statement was filed by the Appellants on

13th February 1999 which was subsequently amended. It was contended that prior written permission of the Executive Engineer of the Public Works Department of

fa1210

the State Government

is required before carrying

out the work of any kind including the digging or repairs of the roads. It was contended that the

work of laying down pipe line was going on at the instance of Cantonment Board and therefore, the

Appellants cannot held to be liable. amendment to the written statement, placed on the provisions of the

By way of reliance was Public Works

Manual. However, as far as other paragraphs of the plaint are concerned, there is a vague denial in the written statement. There is no specific case made out that there was no ditch on the road or that the deceased did not fall in the ditch.

The seventh respondent-Cantonment Board

filed a

written statement by contending that the liability was of the Appellants as the road was vesting in them and the Appellants. The Appellants were

responsible for maintenance of the road.

After evidence was adduced by the parties, the Court recorded a finding that the deceased The

Trial

Pundalik died as a result of fall in the ditch.

Trial Court held that the Appellants were guilty of negligence in the matter of properly maintaining the road. Though the Trial Court held that the

respondent nos.1 to 6 were entitled to compensation, the compensation amount was fixed at Rs.2,00,000/with interest thereon at the rate of 9% per annum from the date of institution of the suit.

The learned A.G.P for the Appellants has taken He invited

the Court through the notes of evidence.

fa1210

the attention of the Court to the evidence of Shri Jibhau Gangurde, Sub Divisional Officer, South

Public Works Division, Nashik. He pointed out that the witness stated in the evidence that, before

digging the road there was no permission obtained from the Public Works Department either by the

Cantonment Board out that the

or by any other party. witness stated that the

He pointed road in

question has been handed over on 18th August 2004 to the Cantonment Board. The learned A.G.P, therefore, submitted that the Appellants were not liable as

there was unauthorized digging of the road by the some one without obtaining permission from the

Public Works Department.

He submitted that there

can be no negligence attributed to the Appellants. He submitted that the entire liability, if any,

ought to have been of the Cantonment Board which has not even bothered to appear before this Court.

The learned counsel for the respondent nos.1 to

4 on instructions states that the said respondents are not desirous of filing any cross appeal or

cross objection. The learned counsel for the said respondents defended the impugned Judgment and

decree and submitted that no interference is called for. She prayed for heavy costs.

10

I have perused the evidence on record. plaintiff she had widow no stepped into witness she

The box. has

first Though

personal

knowledge,

deposed about the accident. was a ditch the ditch.

She deposed that there

on the road and the deceased fell into She was cross examined by the Advocate

fa1210

for the Appellants in which a suggestion given is that the spot of accident is within the jurisdiction of seventh respondent was also Cantonment given that Board. the work A of

suggestion maintenance the seventh

of the road was being carried out by respondent Cantonment Board but the

correctness of the said suggestion was denied. Other suggestion in the cross examination was that the

Appellants were not concerned with the said road. The correctness of the said suggestion was denied by the first respondent. In the cross examination by the Advocate for the Cantonment Board, it was

suggested that there was no such ditch on the spot. There is some cross examination made by the learned

counsel for the Cantonment Board on the income of the deceased. Wagh The a plaintiffs examined officer one who Mr. was

Dharmaraj

retired

police

working as the police Hawaldar on the relevant date with Deolali police station. accidental death report the deceased Pundalik He stated that the

in respect of the death of was recorded with Deolali

Police Station on 10th November 1995.

He stated that

he investigated into the matter. He stated that he recorded inquest panchanama and he recorded

statements of the witnesses.

He stated that he has He proved the spot stated that

also drawn the spot panchanama.

panchanama which is at at Exh.59. He

after investigation he found that the deceased died as his scooter the fell said down witness in was the not ditch. cross

Surprisingly,

examined by the Appellants. There

is a brief cross

examination by the Advocate for the Cantonment Board by giving a suggestion that the witness had not

fa1210

drawn inquest panchanama and the spot panchanama. He denied the correctness of the said suggestion.

11

As pointed out earlier, an affidavit

in lieu of

examination-in-chief was filed by the Appellants of one Mr.Jibhau Gangurde, Sub Divisional Officer of concerned Sub Division of Public Works Division. In

paragraph 7 of the affidavit in lieu of examinationin-chief, he stated that for the purpose of giving water connection from the main water line of the Cantonment Board, the road the said Board. of the Public carrying 10 was dug up on behalf of

He stated that a prior permission Works out of Department the the he work was of not obtained In of the

before

digging. in that lieu as

paragraph

affidavit stated

examination-in-chief,

Cantonment Board had not obtained permission of the Appellants for carrying out the work on the road, the Appellants are not concerned with the accident. In paragraph 12 of the said affidavit, the witness specifically stated within that the road in dispute falls of Appellants but as the

the jurisdiction

defendant no.3-Cantonment Board carried out the work without permission, the Appellants are not concerned with the consequences. In the cross examination, he

admitted that no action has been taken against the defendant permission no.3 of for the digging the road In the without cross

Appellants.

examination, the witness came out with a case that at the time of accident the road was not within his jurisdiction. In the further part of the cross

examination, he stated that the road was handed over by the Appellants in the year 2004 to the Cantonment

fa1210

Board. affidavit

Even in

that lieu

is

the of

statement

made

on

the in

examination-in-chief

paragraph 12.

12

In the present case, the accident occurred on

10th November 1995 and therefore, admittedly, as of that date, the road was vesting in the Appellants and they were responsible for proper maintenance of the said road. Categorical statement in paragraph 12 of the evidence of Jibhau Gangurde is that the said

road which was within the jurisdiction of Appellants was transferred to the seventh respondent-Cantonment Board on 18th August 2004. Therefore, a categorical

finding will have to be recorded that on the date of accident it was the responsibility of the Appellants to maintain the road in proper condition.

13 one

The seventh respondent-Cantonment Board examined Ramesh in Yadav lieu as of a witness by filing his His

affidavit

examination-in-chief.

version is that on the date of accident,

the road

was not vesting in the Cantonment Board and that the Public Works Department was the owner of the road. He stated that no one had taken the permission from the Cantonment Board for digging the road. In the

cross examination, he admitted that Mr.Sawant was serving in Water Department in Cantonment Board in the year 1995. He stated that he was not aware that the road was found dug. on 10th November 1995,

14

After

consideration

of

the

evidence,

the

scenario which emerges is that the Appellants have not disputed that there was a ditch on the road.

fa1210

The

Police

Officer came

of to

the the

first

Appellant that

after the

investigation

conclusion

accident occurred due to fact that the scooter fell in the ditch on the road. The Police Officer was It is an

not cross examined by the Appellants.

admitted position that on the date of accident, the road was vesting in the Appellants and the Public Works Department of the Appellants was responsible for maintaining the road. It is not the case made out that the digging work was carried out just

before the accident and therefore, the Officers of the Appellants were not aware of the said ditch.

15 road

Notwithstanding the admitted position that the was vesting in Appellants on the date of

accident, a suggestion was given to the widow of the deceased that in her cross examination it was the Cantonment Board which was responsible for

maintaining the said road.

A suggestion was given

to her by the Appellants that there is no evidence produced by her to show that the said Public Works Department was responsible for maintaining the road. To say the least, this stand taken in the cross examination was not honest. Only contention of the Appellants was that the work of digging was carried out without prior permission of the Department. This contention cannot Public Works absolve the

Appellants from their obligation of road in proper condition. 10.30 p.m.

maintaining the

The accident occurred at

It is not the case of the Appellants

that the road was well lighted. The spot panchanama at Exh.59 is proved by the Police Officer and there is no challenge by the Appellants to the contents of

10

fa1210

the spot panchanama as the Police Officer who has drawn the panchanama was not cross examined. The

panchanama records that from one side of the road to the other side, there was a ditch of 6 to 9 inches The spot panchanama

in depth and 2 feet in width.

shows that there was no warning displayed near the spot that there was such a huge ditch having width of 2 feet and depth of about 9 inches. particular Thus, that

section of the road certainly was not There is a gross negligence on the

fit for traffic.

part of the Appellants. The failed to perform their duty of maintaining the road in proper condition. It was the duty of the Appellants to warn the drivers of the vehicles due to by putting up display Boards. not

Obviously,

darkness, the

deceased did

spot the said ditch and the scooter fell ditch. of the taking Court

in the

Thus, there was complete failure on the part Appellants to perform their obligation of due is care right and in caution holding and that thus, there the is Trial gross

negligence on the part of the Appellants.

16

As

far

as

the

quantum

of

compensation

is

concerned, the age of the deceased was 42 years. Even assuming that there was no specific evidence of income of the deceased, compensation of Rs.

2,00,000/- granted by the Trial Court is in fact less than reasonable, considering the fact that the deceased was survived by his widow and three minor children along with parents. possible to interfere Therefore, it is not the quantum of

with

compensation.

In fact, the compensation could have

been higher but the plaintiffs are not interested in

11

fa1210

claiming

any

enhancement.

It

is

unfortunate

that

such a suit filed in the year 1998 remained pending till May 2010.

17

Looking to the findings recorded by the Trial

Court, the litigation should have come to an end after the decree. However, the matter has been

carried by the appellants to this Court. The stand taken by the appellants during the course of trial is not at all fair. The original plaintiffs were

required to engage an Advocate before this Court. Therefore, this is the fit case where the appellants will have to be saddled with costs. The amount of

costs is quantified at Rs.15,000/-.

18

Hence, I pass the following order :

i) Appeal is dismissed. ii)The appellants shall pay costs of Rs.15,000/to the first to fourth respondents-original

plaintiffs within a period of six weeks from today. The amount shall be paid by an account payee cheque drawn in favour of the first

respondent payable at Nashik.

JUDGE